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MARY H. KORTNER, ADMINISTRATRIX (ESTATE

OF CAROLINE KENDALL KORTNER)

v. CRAIG L. MARTISE

(SC 18793)

Rogers, C. J., and Norcott, Palmer, Zarella, Eveleigh, McDonald and

Vertefeuille, Js.*

Argued March 13, 2013—officially released June 10, 2014

Christopher C. Burdett, for the appellant-appellee

(plaintiff).
Philip Russell, with whom, on the brief, was Steven

Hartong, certified legal intern, for the appellee-appellant (defendant).

Royal J. Stark and Jean M. Aranha filed a brief for

Connecticut Legal Services, Inc., as amicus curiae.

Daniel J. Klau filed a brief for the Connecticut Probate Assembly et al. as amici curiae.

Kirk W. Lowry and Sally Zanger filed a brief for the

Connecticut Legal Rights Project as amicus curiae.

Sandra L. Sherlock-White, Alexander J. Cuda and

Michael S. Schenker filed a brief for the Connecticut

Bar Association as amicus curiae.
Opinion

EVELEIGH, J. The plaintiff, Mary H. Kortner, the

administratrix of the estate of her daughter, Caroline

Kendall Kortner (Kendall),1 appeals from the judgment

of the trial court, rendered after a jury trial, in favor of

the defendant, Craig L. Martise.2 On appeal, the plaintiff

claims that the trial court improperly denied her motion

to set aside the verdict and for a new trial because a

document that was not properly admitted into evidence

mistakenly was given to the jury during its deliberations

and had the potential to have a highly prejudicial impact

on the jury. For the reasons stated in this opinion, we

agree with the plaintiff and, accordingly, reverse the

judgment of the trial court. We address the plaintiff’s

additional claim that the trial court improperly denied

her motion to strike and motion in limine regarding

Kendall’s ability to consent to sexual conduct and the

defendant’s claims, raised in his cross appeal,3

that the

trial court improperly instructed the jury to consider

Kendall’s status as a conserved person when determining her capacity to consent to sexual conduct, and that

the trial court improperly submitted interrogatories asking the jury to determine whetherthe defendant showed

Kendall pornographic photographs and videos, because

these issues are likely to arise again on remand and

are adequately briefed.4 We answer these additional

questions in the negative.

The record reveals the following facts, which the

jury reasonably could have found, and the following

procedural history. Kendall was born on July 21, 1970.

Throughout her life, Kendall struggled with a severe

eating disorder and other psychological issues, which

required repeated hospitalizations. During her lifetime,

she was diagnosed with clinical depression, borderline

personality disorder, obsessive compulsive disorder,

anorexia nervosa, bulimia nervosa, and periodic dystonia and catatonia. In 1994, at the recommendation of

one of the physicians treating Kendall for her eating

disorder, the plaintiff filed the initial application to be

appointed as the conservator of Kendall’s person. The

court granted the plaintiff’s application on the ground

that Kendall was unable to manage her own affairs.5

In 1999, Kendall was living in an apartment in Stamford. She received the help of an aide, who attended

to her on a daily basis, and oversight from the plaintiff.

One of Kendall’s treating physicians arranged for Kendall to receive a computer and instruction on how to

use it in an effort to enrich her life. At that time, Kendall

began reading Internet sites for women suffering from

eating disorders and posted a profile on the Internet

indicating that she was interested in helping people

deal with eating disorders. The profile also indicated

where Kendall lived.

Shortly thereafter, Kendall received her first instant
message, which was from the defendant. Kendall did

not know the defendant at the time, but in the message

he explained that he had dated a girl with an eating

disorder while in college and that he was curious about

them. The defendant only identified himself by his first

name. Kendall did not respond at first. Then, the defendant proceeded to send approximately ten more instant

messages to Kendall. After these additional messages,

Kendall responded and they began communicating by

instant messages.

The defendant was a computer programmer, and he

helped Kendall learn how to use her computer. The

relationship between Kendall and the defendant continued exclusively online for several years. During this

time, Kendall revealed details of her life to the defendant, including the sexual abuse she had suffered as a

child and in college, her psychological problems, her

many hospitalizations for her eating disorder and the

fact that the plaintiff had been appointed as her conservator. They never exchanged last names, never spoke

on the telephone and never met in person. Their only

form of communication was by e-mail and instant messages. During this time, Kendall was not aware that the

defendant was married and had four children.

In May, 2001, Kendall suffered a stroke, which

resulted in a lengthy hospitalization, during which she

suffered failure of multiple organs and underwent

numerous medical procedures. After her hospitalization, she underwent extensive physical therapy and

rehabilitation. After the stroke, Kendall suffered some

paralysis, which affected, among other things, her ability to walk without the use of a walker or other device.

In late November, 2002, after the plaintiff had

begun transitioning back to her apartment, Kendall

reconnected with the defendant and they began to communicate by e-mail and instant messages again. Sometime in late December, 2002, the defendant and Kendall

began talking on the telephone.

After several requests by the defendant, in February,

2003, the defendant and Kendall met for the first time

at her apartment. At first, the defendant and Kendall

developed a platonic relationship—the defendant

helped her with the computer, and they would watch

movies and talk. Eventually, their relationship became

sexual and developed into a sadomasochistic sexual

relationship.

In August, 2003, the plaintiff became aware of Kendall’s sexual relationship with the defendant when she

noticed a change in Kendall’s behavior and saw bruising

on her body. The plaintiff then made an appointment

for Kendall to see her physician and psychiatrist. At

the advice of her physician, Kendall discontinued the

relationship with the defendant. Thereafter, Kendall

filed a complaint with the Stamford Police Department.
In 2006, the plaintiff, as conservator of the person

of Kendall, filed a three count complaint against the

defendant, which was subsequently amended, alleging

that the defendant committed sexual battery, civil

assault and intentional infliction of emotional distress.

The plaintiff sought compensatory and punitive

damages.

The matter was tried to a jury overten days in December, 2009. The jury returned a verdict for the defendant

on all three counts of the complaint. Thereafter, the

plaintiff filed a motion in arrest of judgment, to set

aside the verdict and for a new trial on the ground that

a document identified as ‘‘plaintiff’s exhibit 7’’ had been

improperly sent to the jury, despite never being admitted into evidence at trial. The trial court denied the

plaintiff’s motion and rendered judgment in accordance

with the verdict. The plaintiff appealed and the defendant cross appealed.6

I

We begin with the threshold jurisdictional question

of whether the plaintiff, as conservator of Kendall’s

person, had standing to bring the present action in

which damages were sought for alleged intentional torts

committed against Kendall by the defendant.7 The plaintiff asserts that she had standing to bring the present

action as conservator of the person of Kendall under

General Statutes §§ 45a-650 and 45a-656 as they existed

at the time this action was brought in 2006. Specifically,

the plaintiff asserts that, under the prior versions of

§§ 45a-650 and 45a-656, the powers and duties of the

conservator were unlimited except when the order

appointing the conservator limited them, and that the

order appointing the plaintiff as Kendall’s conservator

in the present case contained no limitation. The defendant asserts that the plaintiff did not have standing

to bring the present claim because the powers of a

conservator are limited and the conservatorship in the

present case did not grant the plaintiff the authority to

bring a claim on Kendall’s behalf. We conclude that,

even assuming, arguendo, that the plaintiff did not have

standing to bring this action in 2006, any defect was

cured when she was substituted as administratrix of

Kendall’s estate pursuant to General Statutes § 52-109.

With respect to the applicable legal principles, we

have explained that ‘‘[s]tanding is the legal right to set

judicial machinery in motion. One cannot rightfully

invoke the jurisdiction of the court unless he [or she]

has, in an individual or representative capacity, some

real interest in the cause of action, or a legal or equitable

right, title or interest in the subject matter of the controversy.’’ (Internal quotation marks omitted.) Wilcox v.

Webster Ins., Inc., 294 Conn. 206, 214, 982 A.2d 1053

(2009).

Nevertheless, ‘‘[s]tanding is not a technical rule
intended to keep aggrieved parties out of court; nor is

it a test of substantive rights. Rather it is a practical

concept designed to ensure that courts and parties are

not vexed by suits brought to vindicate nonjusticiable

interests and that judicial decisions which may affect

the rights of others are forged in hot controversy, with

each view fairly and vigorously represented.’’ (Internal

quotation marks omitted.) Canty v. Otto, 304 Conn.

546, 556, 41 A.3d 280 (2012). ‘‘These two objectives are

ordinarily held to have been met when a complainant

makes a colorable claim of direct injury he has suffered

or is likely to suffer, in an individual or representative

capacity. Such a personal stake in the outcome of the

controversy . . . provides the requisite assurance of

concrete adverseness and diligent advocacy.’’ (Internal

quotation marks omitted.) Pond View, LLC v. Planning & Zoning Commission, 288 Conn. 143, 155, 953

A.2d 1 (2008). ‘‘Standing [however] requires no more

than a colorable claim of injury . . . .’’ (Internal quotation marks omitted.) Electrical Contractors, Inc. v.

Dept. of Education, 303 Conn. 402, 411, 35 A.3d 188

(2012).

Even if we were to assume, arguendo, that the plaintiff did not have standing to bring the action when it

was commenced in 2006, any jurisdictional defect was

cured by her substitution as plaintiff in 2010 pursuant

to § 52-109.

In 2010, after Kendall passed away and the plaintiff

had been appointed administratrix of her estate, the

plaintiff sought substitution pursuant to § 52-109. On

April 23, 2010, the trial court granted substitution of

the plaintiff as administratrix of Kendall’s estate as the

plaintiff in this matter.

Section 52-109 provides as follows: ‘‘When any action

has been commenced in the name of the wrong person

as plaintiff, the court may, if satisfied that it was so

commenced through mistake, and that it is necessary

for the determination of the real matter in dispute so

to do, allow any other person to be substituted or added

as plaintiff.’’

In DiLieto v. County Obstetrics & Gynecology Group,

P.C., 297 Conn. 105, 150, 998 A.2d 730 (2010), this court

explained that ‘‘[o]ur rules of practice . . . permit the

substitution of parties as the interests of justice require.

. . . These rules are to be construed so as to alter

the harsh and inefficient result that attached to the

mispleading of parties at common law. . . . [Section]

52-109 and [what is now] Practice Book § [9-20] allow

a substituted plaintiff to enter a case [w]hen any action

has been commenced in the name of the wrong person

as plaintiff . . . . Both rules, of necessity, relate back

to and correct, retroactively, any defect in a prior pleading concerning the identity of the real party in interest.’’

(Citation omitted; internal quotation marks omitted.)
This court also recognized that our rules regarding

substitution of parties are analogous to the federalrules

and that federal courts have observed ‘‘that [when] the

change is made on the plaintiff’s side to supply an indispensable party or to correct a mistake in ascertaining

the real party in interest, in order to pursue effectively

the original claim, the defendant will rarely be unfairly

prejudiced by letting the amendment relate back to the

original pleading. . . . As long as [the] defendant is

fully apprised of a claim arising from specified conduct

and has prepared to defend the action, his ability to

protect himself will not be prejudicially affected if a

new plaintiff is added . . . . Thus, an amendment substituting a new plaintiff [will] relate back if the added

plaintiff is the real party in interest.’’ (Citation omitted;

internal quotation marks omitted.) Id., 150–51.

‘‘[R]emedial statutes such as [§ 52-109] were intended

to soften the otherwise harsh consequences of strict

construction under the common law: Over-technical

formal requirements have ever been a problem of the

common law, leading [legislative bodies] at periodic

intervals to enact statutes . . . [that], in substance,

told the courts to be reasonable in their search for

technical perfection. . . . Under § 52-109, substitution

is permitted only when the trial court determines that

the action was commenced in the name of the wrong

plaintiff through mistake, which properly has been

interpreted to mean an honest conviction, entertained

in good faith and not resulting from the plaintiff’s own

negligence that she is the proper person to commence

the [action]. . . . [O]nce such a determination is made

. . . the substituted party is let in to carry on a pending

suit, and is not regarded as commencing a new one.

After he is substituted he is . . . treated and regarded

for most purposes just as if he had commenced the

suit originally. The writ, the complaint, the service of

process, attachment made, bonds given, the entry of

the case in court, the pleadings if need be, in short all

things done in the case by or in favor of the original

plaintiff . . . remain for the benefit of the plaintiff who

succeeds him, as if done by and for him originally and

just as if no change of parties had been made. So far

as the defendant is concerned, the same suit upon the

same cause of action, under the same complaint and

pleadings substantially in most cases, goes forward to

its final and legitimate conclusion as if no change had

been made.’’ (Citations omitted; internal quotation

marks omitted.) Id., 151–52.

Indeed, in DiLieto, this court also favorably cited a

federal case, Health Research Group v. Kennedy, 82

F.R.D. 21, 30 (D.D.C. 1979), for the proposition that the

substitution of a real party in interest as the plaintiff

cures the lack of standing of the original plaintiff.

DiLieto v. County Obstetrics & Gynecology Group,

P.C., supra, 297 Conn. 151.
The relevant provision of our rules of practice is set

forth in Practice Book § 9-20, which provides: ‘‘When

any action has been commenced in the name of the

wrong person as plaintiff, the judicial authority may, if

satisfied that it was so commenced through mistake

and that it is necessary for the determination of the

real matter in dispute so to do, allow any other person

to be substituted or added as plaintiff.’’ To quote the

commentary to this rule in the Connecticut Practice

Series: ‘‘This section prevents the failure of an action

when the wrong person is named as plaintiff. If a motion

is granted to substitute the correct plaintiff, the motion

relates back to commencement of the suit. [Federal

Deposit Ins. Corp.] v. Retirement Management Group,

Inc., 31 Conn. App. 80, 623 A.2d 517 (1993).’’ W. Horton & K. Knox, 1 Connecticut Practice Series: Connecticut Superior Court Civil Rules (2013–2014 Ed.) § 9-20,

p. 488. The commentary continues: ‘‘This section

applies to the assignee when the assignor improperly

brought the action, [as in] United States Trust Co. [of

New York] v. DiGhello, 179 Conn. 246, [247 n.1, 425

A.2d 1287] (1979), or to an assignor when the assignee

improperly brought the action, [as in] Bowen v.

National Life [Assn.], 63 Conn. 460, 474–77, [27 A. 1059]

(1893). Bowen is especially important because it

allowed the substitution of the correct plaintiff after

the statute of limitations has run.’’ 1 W. Horton & K.

Knox, supra, § 9-20, p. 489.

On the basis of the foregoing, we conclude that even

assuming, arguendo, that the plaintiff did not have

standing to bring the claim when she commenced the

action in 2006, any defect was cured when she, as

administratrix of Kendall’s estate, was substituted as

the plaintiff in 2010 and that substitution related back

to the commencement of the action. Our conclusion is

not meant to suggest that any person who is appointed

an administrator of an estate becomes a proper party

to any claim. As § 52-109 requires, the substitution of

an administrator of an estate ‘‘is necessary forthe determination of the real matter in dispute . . . .’’ In the

present case, it is clear that Kendall herself had ‘‘a

colorable claim of injury,’’ therefore, the substitution

of the plaintiff, as administratrix of the estate, cured

any possible jurisdictional defect. See Electrical Contractors, Inc. v. Dept. of Education, supra, 303 Conn.

411. Accordingly, we conclude that there are no jurisdictional defects created by standing in the present case.

II

We next turn to the plaintiff’s claim that the trial

court improperly denied her motion to set aside the

verdict and for a new trial. Specifically, the plaintiff

asserts that the trial court abused its discretion by denying her motion after becoming aware of the misconduct

that infected the trial process. Namely, the plaintiff

asserts that the trial court clerk’s failure to alert the
court of a question from the jury regarding a particular

exhibit constituted misconduct in the trial process

requiring reversal. We agree with the plaintiff.

The record reveals the following additional facts and

procedural history, which are relevant to the plaintiff’s

claim. Prior to the trial in this case, the trial court and

counsel for both parties agreed that the parties would

premark each exhibit and exchange copies of each

exhibit. It was agreed that if the parties could not agree

on the admissibility of an exhibit, it would be marked

for identification purposes only. If all counsel agreed

on an exhibit, it would be marked as a full exhibit. The

parties agreed that the clerk who was overseeing the

marking of exhibits would fill out the exhibit sheet

listing each of the exhibits and indicate whether it was

a full exhibit or for identification purposes only. On

November 20, 2009, counsel for both parties and the

clerk met, marked and exchanged exhibits. On the same

day, the clerk marked ‘‘plaintiff’s exhibit 7’’ as a full

exhibit.

Plaintiff’s exhibit 7 is a typewritten letter dated February 15, 2003. The letter is addressed to the XYZ Housing

Authority at 482 West Main Street in Stamford. This

letter states as follows: ‘‘I have been a disabled resident

of 482 West Main Street for seven years. Events over

the past two years have forced me to bring a matter of

serious concern to your attention to be addressed.

Please be advised by this letter that I expect these

concerns to be rectified immediately or I will take further action in other forums.

‘‘Specifically, one of your employees John Jones . . .

for the past two years has consistently made unwanted,

inappropriate and threatening sexual advances to me.

For example:

‘‘Unwanted and [i]nappropriate sexual behavior

including, but notlimited to, hugging, attempted kissing,

getting into bed with me without my consent, inappropriate touching, conversing in a sexual nature, and generally behaving in both actions and deeds in a manner

that makes me uncomfortable and feeling extremely

threatened and sexually abused.

‘‘Threatening behavior including, but not limited to,

constantly visiting and loitering around my front door

and in my apartment, constantly telling me how he

wants to ‘get together with me’, not leaving when I ask

him to leave, sitting in the chair by my bed for extended

periods of time (for no reason), telling/threatening me

that ‘he’ll be back’ and generally acting in words and

deeds in a manner that makes me feel vulnerable,

defenseless and that my safety is in extreme jeopardy.

‘‘If any of these actions persist in any way from this

point forward, for my own safety I will be forced to

address these concerns with higher authorities in both

the civil and criminal forums; as well as getting other
bodies (i.e. [s]tate, [f]ederal, [m]edicare, [Better Business Bureau], etc.) to deal with them as severely as

they should be treated.

‘‘Lastly, to avoid further harassment, I expect all

future communications in this matter be addressed

either in writing or with both my mother and I present.

‘‘Sincerely, Kendall Kortner.’’ (Emphasis omitted.)

Although the plaintiff has consistently alleged that the

document was drafted by the defendant, no testimony

or other evidence regarding the source or nature of the

document was ever presented to the jury.

Prior to the start of trial, the plaintiff had filed a

motion in limine seeking to prohibit the defendant from

presenting evidence regarding Jones. After hearing

argument on the motion in limine, the trial court ruled

that the defendant was not to inquire into that issue

without first alerting the court of his intention to do

so, but reserved its decision on the admissibility of such

evidence to be made based on the testimony at the time

of trial. Plaintiff’s exhibit 7 had been marked as an

exhibit prior to the court making a final ruling on the

motion in limine during trial. Thereafter, during trial,

the trial court ultimately ruled that ‘‘[t]here will be no

questions regarding [Jones].’’

During the trial in this matter, neither counsel for the

plaintiff nor counsel for the defendant ever introduced

plaintiff’s exhibit 7 into evidence or presented any testimony regarding that exhibit. After final arguments, the

trial court instructed the jury, in relevant part, as follows: ‘‘If you have any questions, put them in writing

and deliverthem to the court personnel who will deliver

them to the court, in other words, to me.

‘‘Likewise if you wish to make a request to hear any

of the testimony again, as you have the right to, put

the request in writing and please try to be as specific

as possible.

‘‘Now I just want to tell you about these writings that

come from the foreperson. When you write a note to

the court and ask for either some testimony to be played

back or you have a question to the court, that should

be in writing, and the foreperson should sign the note,

okay, with his name and the date and time that you are

making the request to the court, so you’ll be very specific in that respect.’’

Thereafter, counselfor both parties reviewed the documents provided to the jury for their deliberation, and

confirmed the submission of all exhibits to the jury,

including plaintiff’s exhibit 7. Neither counsel for the

plaintiff nor counsel for the defendant informed the

court that plaintiff’s exhibit 7 should be removed from

the exhibits based on the trial court’s ruling during trial.

After the jury’s verdict had been read and accepted

and court was adjourned, the trial court met with the
jury to thank them for their service. At that time, one of

the jurors mentioned plaintiff’s exhibit 7 and expressed

confusion about the fact that he had not heard about

it during trial. The trial court did not offer an explanation of the exhibit, but stated that it had been marked

as a full exhibit. The trial court excused the jurors and

told them they were permitted to speak with anyone

about their service, including counsel, but not to speak

about their deliberations.

Thereafter, the plaintiff filed a motion to set aside

the verdict and for a new trial. The plaintiff submitted

two affidavits from jurors as part of her motion, including one affidavit from the foreperson. In one of these

affidavits, a juror explained that he was confused about

plaintiff’s exhibit 7 during deliberations and that the

jury ‘‘discussed whether to send a general question to

the judge asking about the exhibits we were supposed

to have during our deliberations, or whether to send

a note specifically about [p]laintiff’s [e]xhibit 7.’’ The

affidavit continues, ‘‘[e]ventually, the foreperson prepared a note specifically about [p]laintiff’s [e]xhibit 7,

and we sent for the clerk.’’ The juror further explained,

‘‘[w]e then showed the clerk [p]laintiff’s [e]xhibit 7 and

said that it was what we were concerned about, and

the clerk replied that she was familiar with it and that

it was supposed to be a part of the evidence we should

consider.’’ The affidavit also states: ‘‘We asked whether

our question about [p]laintiff’s [e]xhibit 7 needed to be

answered by the court, but we believed that the clerk

had essentially answered the question for the court, so

we accepted that answer, the foreperson discarded the

note he had prepared for the judge, and we went on

with our deliberations.’’

In another affidavit, the foreperson explained as follows: ‘‘In response to my question about sending a note

to the judge, the clerk said it would not be necessary,

since everything in the box of exhibits which had been

brought in to us for our deliberations was supposed to

be there.’’ The affidavit further states that the foreperson recalled ‘‘asking a couple of times, and the clerk

seemed quite confident that it was unnecessary to alert

the judge.’’ The foreperson also indicated in his affidavit

that he ‘‘had actually written a quick note to the judge,

which [he thought] several of the other jurors saw,

inquiring about this exhibit, but because of the clerk’s

comments, we did not forward the note to the judge.’’

As the ground for her motion set aside the verdict

and for a new trial, the plaintiff claimed that because

it was not offered or admitted into evidence during trial,

plaintiff’s exhibit 7 was not properly submitted to the

jury pursuant to Practice Book § 16-15 and that, had

the jury’s written question about plaintiff’s exhibit 7

been submitted to the trial court, the court would have

made further inquiry and had the ability to withdraw

it and issue a curative instruction. The plaintiff further
claimed that the potential harmfulness and prejudice

of plaintiff’s exhibit 7 is both highly significant and

self-evident because the jury never heard testimony

identifying or explaining the document and the nature

of the document went to a central issue in the case,

namely, Kendall’s ability to resist unwelcome sexual

advances.

The trial court denied the plaintiff’s motion. In doing

so, the trial court relied on the fact that the plaintiff’s

counsel reviewed the exhibits that were submitted to

the jury prior to their submission and that neither plaintiff’s counsel nor defendant’s counsel objected to the

submission of plaintiff’s exhibit 7 to the jury. In denying

the plaintiff’s motion, the trial court also relied on the

fact that the plaintiff had not demonstrated that the

jury was affected by the exhibit.8 The trial court also

rejected the plaintiff’s claim that the clerk’s failure to

allow the jury to present a note to the court was not

itself reason to set aside the verdict and grant a new

trial. Furthermore, the trial court concluded that ‘‘the

exhibit at issue was introduced and [premarked] by the

plaintiff as a full exhibit. This marking was made even

though it was clear that the parties had the right to

mark any exhibits which were not agreed upon as an

exhibit for identification. There was never a request to

correct the marking during the days of trial or to withdraw the exhibit as a full exhibit. More importantly, as

the exhibits were prepared for submission to the jury

for consideration in the deliberation, the plaintiff specifically noted plaintiff’s exh[ibit] 7 as a document to be

submitted to the jury. These actions by the [plaintiff]

can lead to no other conclusion than that [she] waived

any objection to the submission of the exhibit to the

jury.’’

We begin our analysis of the plaintiff’s first claim by

setting forth the applicable standard of review. ‘‘The

proper appellate standard of review when considering

the action of a trial court in granting or denying a motion

to set aside a verdict is the abuse of discretion standard.

. . . In determining whether there has been an abuse

of discretion, every reasonable presumption should be

given in favor of the correctness of the court’s ruling.

. . . Reversal is required only [when] an abuse of discretion is manifest or [when] injustice appears to have

been done.’’ (Citations omitted; internal quotation

marks omitted.) Label Systems Corp. v. Aghamohammadi, 270 Conn. 291, 303, 852 A.2d 703 (2004). ‘‘[T]he

role of the trial court on a motion to set aside the jury’s

verdict is not to sit as [an added] juror . . . but, rather,

to decide whether, viewing the evidence in the light

most favorable to the prevailing party, the jury could

reasonably have reached the verdict that it did.’’ (Internal quotation marks omitted.) Hunt v. Prior, 236 Conn.

421, 429 n.21, 673 A.2d 514 (1996). ‘‘In reviewing the

action of the trial court in denying [or granting a motion]

. . . to set aside the verdict, our primary concern is to
determine whether the court abused its discretion

. . . . The trial court’s decision is significant because

the trial judge has had the same opportunity as the jury

to view the witnesses, to assess their credibility and

to determine the weight that should be given to [the]

evidence. Moreover, the trial judge can gauge the tenor

of the trial, as [this court], on the written record, cannot,

and can detect those factors, if any, that could improperly have influenced the jury.’’ (Internal quotation

marks omitted.) Childs v. Bainer, 235 Conn. 107, 113,

663 A.2d 398 (1995).

On appeal, the plaintiff asserts that the trial court

improperly denied her motion to set aside the verdict

and for a new trial. Specifically, the plaintiff asserts

that, the submission of plaintiff’s exhibit 7 to the jury

for consideration constitutes juror misconduct because

it was not admitted into evidence and it is highly likely

that it prejudiced the jury because the jurors never

heard any testimony explaining the document and the

document addressed an issue central to the plaintiff’s

case, namely Kendall’s ability to resist unwelcome sexual advances. The plaintiff also asserts that she did not

waive any objections to the admission of the document

and was improperly denied the opportunity to ask the

trial court to rectify the mistake. In response, the defendant asserts that the trial court did not abuse its discretion in denying the plaintiff’s motion to set aside the

verdict. Specifically, the defendant claims that plaintiff’s exhibit 7 was properly before the jury because it

was marked by the plaintiff as a full exhibit prior to

trial. The defendant further asserts that the plaintiff

waived any claim that plaintiff’s exhibit 7 was improperly submitted to the jury. The defendant also claims

that, even if plaintiff’s exhibit 7 was improperly provided to the jury, the plaintiff did not meet her burden

of establishing that she was entitled to a new trial. We

agree with the plaintiff.

A

We first address the threshold issue raised by the

plaintiff’s claim—namely, whether plaintiff’s exhibit 7

was evidence in the case. The plaintiff asserts that plaintiff’s exhibit 7 was not evidence in the case because it

was never offered or received in evidence during the

course of the trial and that the premarking of that document as a full exhibit did not make it evidence in the

trial. The defendant claims that plaintiff’s exhibit 7 was

properly before the jury because the parties had marked

it as a full exhibit prior to trial. We agree with the

plaintiff.

The text of Practice Book § 5-7 supports the conclusion that exhibits must be received in evidence during

the course of the trial. Specifically, § 5-7 provides as

follows: ‘‘Unless otherwise ordered by the judicial

authority, the clerk shall mark all exhibits not marked

in advance of trial and shall keep a list of all exhibits
marked for identification or received in evidence during the course of the trial.’’ (Emphasis added.) As § 5-7

indicates, a document can only be received in evidence

during trial and the clerk must maintain a list of documents received in evidence during the trial.

The defendant asserts that plaintiff’s exhibit 7 was

admitted into evidence because it was premarked as a

full exhibit prior to trial. The procedure for premarking

exhibits is explained in the Civil Jury Trial Management

Order (trial management order), a standing order of

the Judicial Branch. See B. Quinn & L. Lager, ‘‘Civil

Jury Trial Management Order,’’ (last modified March

11, 2011), p. 2, available at http://jud.ct.gov/external/

super/Standorders/Civil/_TMC_Order_Jury.pdf (last

visited May 22, 2014). This order explains as follows:

‘‘Before the start of evidence, all exhibits each side

reasonably expects to introduce must be [premarked]

as full . . . if all sides agree, or for identification only

. . . . Unless otherwise ordered by the court at the

trial management conference or by the assigned trial

judge, exhibits shall be marked in accordance with the

instructions contained in Form JD-CL-28 (List of Exhibits) and the form must be submitted to the court on or

before the first day of evidence. Any exhibit that is

offered at trial but is not on the List of Exhibits will

not be admitted, except for good cause shown or if the

exhibit is offered as rebuttal orimpeachment evidence.’’

(Emphasis added.) Id. The language of the trial management order specifically indicates that, at trial, a party

must still introduce an exhibit that has been premarked

as a full exhibit. Indeed, the premarking of an exhibit

as full only indicates that a party ‘‘reasonably expects

to introduce’’ it as an exhibit and, if it is offered, the

other party will not object. Id. Nothing in these orders

or the Practice Book suggests that the premarking of

an exhibit replaces the actual offering of an exhibit into

evidence at trial. Furthermore, the language of the order

specifically contemplates that the marking of an exhibit

as full does not require that the exhibit necessarily be

used as evidence during the trial.

Indeed, during the course of this trial, counsel for

the plaintiff and counsel forthe defendant and the judge

all operated with the understanding that documents

that were premarked as full exhibits still needed to be

offered into evidence during the course of the trial.

For instance, at trial, when counsel for the plaintiff

attempted to ask the plaintiff about a document that

had been premarked as a full exhibit, counsel for the

defendant interrupted saying, ‘‘[i]f Your Honor please,

I don’t know if the document has been offered or not

at this point.’’ The trial court then responded, ‘‘[h]as

not. Are you offering that as a full exhibit, counsel?’’

Counsel for the plaintiff responded as follows: ‘‘Well it

was marked as a full exhibit before, but at this point

I’ll withdraw the offer and we’ll deal with it when we

can do it in a logical fashion.’’ This colloquy makes
clear that counsel for both parties and the judge in

the present case understood that the premarking of a

document as a full exhibit did not constitute offering

that document into evidence.

On the basis of the foregoing, we conclude that plaintiff’s exhibit 7 was not properly admitted into evidence.

Plaintiff’s exhibit 7 was never received into evidence

by the judge and never published to the jury. It is undisputed that plaintiff’s exhibit 7 was only premarked as

a full exhibit, was never mentioned during the course

of the trial and was never shown to the judge or the

jurors during the course of the trial. Therefore, we conclude that it was not properly received into evidence

and should not have been given to the jury pursuant to

Practice Book § 16-5.

The defendant asserts that the plaintiff waived any

claim related to plaintiff’s exhibit 7 because she

requested that it be marked as a full exhibit prior to

trial and never asked that it be removed from the exhibits that were provided to the jury for their deliberation.

We disagree.

The defendant claims that the plaintiff waived her

claim regarding plaintiff’s exhibit 7 because she affirmatively premarked the exhibit as a full exhibit. As we

explained previously herein, the plaintiff did not offer

plaintiff’s exhibit 7 into evidence at trial, but merely

asked that it be placed on the list of exhibits that she

reasonably expected to introduce at trial, in accordance

with the trial management order. A review of the trial

management order, however, reveals that ‘‘all exhibits

each side reasonably expects to introduce must be premarked as full . . . if all sides agree . . . .’’ B. Quinn &

L. Lager, supra, p. 2. Therefore, the plaintiff’s decision

to mark plaintiff’s exhibit 7 as a full exhibit for the

exhibit list is not grounds to find that she waived any

later claim about that document.

Moreover, it is important to rememberthat at the time

the plaintiff asked that plaintiff’s exhibit 7 be marked as

a full exhibit, the trial court had not ruled on the plaintiff’s motion in limine seeking to exclude evidence

related to Jones. Once the trial court ruled on the plaintiff’s motion in limine and determined that evidence

related to Jones would not be admissible, plaintiff’s

exhibit 7 could not be admitted into evidence in the

absence of a new ruling by the trial court.

The defendant also claims that the plaintiff waived

any claim related to the submission of plaintiff’s exhibit

7 to the jury when plaintiff’s counsel had the opportunity to conduct a final review of the documents to be

submitted to the jury on December 17, 2009. Although,

we agree with the plaintiff’s counsel’s acknowledgment

that he made a mistake in not asking that plaintiff’s

exhibit 7 be removed from the exhibits submitted to the

jury, we cannot conclude that this mistake constitutes
waiver or induced error. The plaintiff consistently took

the position, through her motion in limine, that any

evidence related to Jones—thereby necessarily including plaintiff’s exhibit 7—should be excluded. Additionally, the plaintiff had no reason to believe that a

document that was never actually offered or received

into evidence during the course of trial would be

included in the exhibits submitted to the jury. Based on

the foregoing, we cannot conclude that any inadvertent

failure on her counsel’s part to object to the inclusion

of plaintiff’s exhibit 7 in the exhibits being submitted

to the jury is sufficient to constitute waiver, especially

since counsel for the defendant also had the same obligation to alert the court to any mistake in the exhibits

being submitted to the jury in light of the judge’s ruling

that all testimony regarding Jones was inadmissible.

Furthermore, the clerk’s failure to alert the judge to

the jury’s concerns deprived the plaintiff and the trial

court of the opportunity to rectify the inadvertent mistake of providing plaintiff’s exhibit 7 to the jury for

deliberation. As explained previously in this opinion,

the trial court instructed the jury to put any questions

in writing and submit them to the clerk. The jury

attempted to follow this instruction by preparing a note

regarding plaintiff’s exhibit 7 and calling for the clerk.

According to the court’s instructions, the jury understood that the clerk would deliver that note to the court.

The clerk, however, did not follow the procedure as

described in the instructions. Instead, the clerk took it

upon himself or herself to respond to the jurors’ question about plaintiff’s exhibit 7 and to never alert the

judge or the parties to the jurors’ concerns about the

exhibit. It was this interference with the trial process

that prevented the trial court and the parties from having the opportunity to rectify the inadvertent error of

providing plaintiff’s exhibit 7 to the jury fortheir deliberations.9

A clerk must always convey a jury’s question to the

judge, as explained in the model jury instructions. See

Connecticut Civil Jury Instructions (4th Ed. 2008)

instruction 2.9-3, available at http://www.jud.ct.gov/JI/

civil/part2/2.9-3.htm (last visited May 22, 2014) (copy

contained in the file of this case in the Supreme Court

clerk’s office) (‘‘If you have questions during your deliberations, the foreperson should write the jury’s question

on a sheet of paper, sign and date it, and knock on the

door. The marshal will then bring the question to me,

and I will respond in open court. It may take a few

minutes to assemble the staff before you are brought

to the courtroom to hear the response. Please try to

make any questions very precise. We cannot engage in

an informal dialogue, and I will respond only to the

question on the paper.’’). The actions of the clerk in

this matter tainted this process. We do not know what

the judge would have done if presented with the issue

during the trial. We do know, however, that the actions
of the clerk prevented the trial court from considering

the matter. At oral argument before this court, the counsel for the plaintiff acknowledged that he made a mistake allowing the exhibit to go to the jury, but asserted

that the mistake could have been rectified if the judge

was notified of the jury’s question and conducted an

inquiry into the matter. We also know based on the

representations made by the counsel for the defendant

at oral argument that he would not have objected to

removing plaintiff’s exhibit 7 from the exhibits given

to the jury. The clerk’s action, therefore, is further

ground for concluding that the plaintiff did not waive

her claim regarding the improper consideration of plaintiff’s exhibit 7 by the jury.

The trial court relied on cases in which this court has

concluded that evidence admitted without objection is

in evidence. See State v. Rawls, 198 Conn. 111, 118, 502

A.2d 374 (1985) (‘‘[w]here hearsay evidence is admitted

without objection, such evidence may be given such

weight as the trier of fact deems that it is worth’’ [internal quotation marks omitted]). We conclude that such

cases are distinguishable from the present case

because, as we have explained previously in this opinion, plaintiff’s exhibit 7 was never admitted into evidence. The defendant does not cite, and we cannot

find, any authority for the proposition that a document,

which is not properly admitted into evidence during

trial, becomes evidence by being provided to the jury

after the close of evidence. Therefore, we conclude that

the trial court’s reliance on these cases was improper.

On the basis of the foregoing, we conclude that plaintiff’s exhibit 7 was not properly admitted into evidence

and, therefore, was not properly before the jury.

B

Having concluded that plaintiff’s exhibit 7 was not

properly admitted into evidence, we must determine

whether the submission of that document to the jury

constitutes reversible error. In the present case, the

plaintiff asserts that the jury’s consideration of material

not in evidence was such that it is probable that the

jury was so influenced by it as to cause prejudice. Specifically, the plaintiff claims that the jury’s improper

consideration of plaintiff’s exhibit 7 prejudiced the jury

because it related to a central issue in the case, namely

whether Kendall was able to consent to or resist sexual

advances. We agree.

Although the parties analyze this issue as one of juror

misconduct, because there is no allegation that any of

the jurors acted improperly themselves and, indeed, the

jurors in the present case properly followed the jury

instructions, we find it more appropriate to analyze this

claim as we would an evidentiary impropriety since it

involved the jury considering material that was improperly before it.
We have repeatedly recognized that ‘‘an evidentiary

impropriety in a civil case is harmless only if we have

a fair assurance that it did not affect the jury’s verdict.’’

(Internal quotation marks omitted.) Hayes v. Camel,

283 Conn. 475, 489, 927 A.2d 880 (2007).

‘‘ ‘A determination of harm requires us to evaluate

the effect of the evidentiary impropriety in the context

of the totality of the evidence adduced at trial. Vasquez

v. Rocco, 267 Conn. 59, 72, 836 A.2d 1158 (2003). Thus,

our analysis includes a review of: (1) the relationship

of the improper evidence to the central issues in the

case, particularly as highlighted by the parties’ summations; (2) whether the trial court took any measures,

such as corrective instructions, that might mitigate the

effect of the evidentiary impropriety; and (3) whether

the improperly admitted evidence is merely cumulative

of other validly admitted testimony. . . . Prentice v.

Dalco Electric, Inc., [280 Conn. 336, 358, 907 A.2d 1204

(2006), cert. denied, 549 U.S. 1266, 127 S. Ct. 1494, 167

L. Ed. 2d 230 (2007)]; see also id., 360–61 (noting that

during summation, plaintiff described issue encompassing improperly admitted scientific evidence as critical and emphasized that evidence); Hayes v. Caspers,

Ltd., 90 Conn. App. 781, 800, 881 A.2d 428 (cautionary

instruction addressed prejudicial impact of expert’s testimony that included arguably improper discussion of

pending federal action), cert. denied, 276 Conn. 915,

888 A.2d 84 (2005); Raudat v. Leary, 88 Conn. App. 44,

52–53, 868 A.2d 120 (2005) (improperly admitted expert

testimony was harmful error when it related to central

issue in case, namely, condition of purchased horse);

DeMarkey v. Fratturo, [80 Conn. App. 650, 656–57, 836

A.2d 1257 (2003)] (improperly admitted hearsay evidence about cause of motor vehicle accident was harmless because it was cumulative of properly admitted

testimonial and diagram evidence). The overriding

question is whether the trial court’s improper ruling

affected the jury’s perception of the remaining evidence. Swenson v. Sawoska, 215 Conn. 148, 153, 575

A.2d 206 (1990).’ . . . Hayes v. Camel, supra, 283

Conn. 489–90.’’ Sullivan v. Metro-North Commuter

Railroad Co., 292 Conn. 150, 162–63, 971 A.2d 676

(2009).

In the present case, the plaintiff claimed that the

defendant committed sexual battery, civil assault and

intentional infliction of emotional distress. In response,

inter alia, the defendant asserted as a special defense

that Kendall consented to any and all sexual contact

with him. Because of these claims and the special

defense proffered by the defendant, Kendall’s ability to

consent or resist sexual advances was a central issue in

this case. Therefore, a letter in which Kendall expressly

stated her lack of consent to sexual advances and formally complained of unwanted sexual advances had

the potential for significant impact on the jury. A jury
could have found that the letter itself demonstrated

that Kendall had the ability to consent and was not, as

the plaintiff alleged, unable to consent to sexual

conduct.

An examination of the evidence adduced at trial demonstrates thatthe parties focused much of the testimony

on Kendall’s capacity to consent. The plaintiff adduced

testimony to demonstrate that, despite Kendall’s apparent intelligence, she was unable to care for herself and

make her own decisions, including being unable to consent to sexual conduct.

For instance, Kendall herself testified that she performed very well in high school, achieving a straight A

average, and then received admission to a number of

top colleges. Kendall also testified that, at first, she

performed very well academically in college at the University of North Carolina, Chapel Hill, but left during

her sophomore year after being the victim of a gang

rape. Kendall further testified that her health dramatically declined afterthat period and that her weight went

below eighty-five pounds at that point and remained

that low. Kendall testified that she became so mentally

and physically challenged after that and spent most of

her twenties going in and out of hospitals for treatment

of her eating disorder. Kendall also explained that she

received shock therapy a few times, was fed by a feeding

tube against her consent and that her weight went as

low as fifty-five pounds. Kendall also testified that she

took a number of medications, including those for

depression, anxiety, extreme pain, and a mood stabilizer. She also explained that she had a nurse or the

plaintiff in each day to administer her medications and

an aide to assist her with her daily tasks of living, including showering and light housework.

Kendall also testified that in May of 2001, she suffered

a stroke like episode that caused a dramatic decline in

her health. She explained that she was on total life

support, almost had her legs amputated and underwent

fasciotomies, in which they made incisions running

from her ankles to her knees on the inside and outside

of both legs. She also explained that after the stroke

she needed to use braces and a wheelchair and learn

how to eat again. Kendall further testified that she continued to have problems with her urinary function up

to the time of trial, which caused her not to know when

she had to urinate and that she needed to wear diapers

to address this problem. Kendall also testified that she

suffered mental confusion after her stroke and frequently could not think of simple words. Kendall also

testified that after the stroke she needed to learn to

read again.

In addition, Timothy Dolan, a detective with the Stamford Police Department who had interviewed Kendall

once her relationship with the defendant was reported

to the police, also testified at trial. Dolan testified that
Kendall had told him that the defendant told her to tell

him to stop if anything he was doing hurt her and that

she only told him to stop one time.

During cross-examination by defense counsel, Kendall testified as follows:

‘‘Q. Did he ever say to you, ‘[i]f you don’t want to do

something or if I’m hurting you . . . then tell me to

stop and I will stop?’

‘‘A. He just did what he pleased when the time came.

He said ‘fire truck.’ He said say ‘Fire Truck,’ if it gets

out of hand. No matter what I said, he finished what

he was doing and it was like relevant.

‘‘Q. Right. So he ignored you when you told him

to stop?

‘‘A. Yes.

‘‘Q. How many times—

‘‘A. He just kept on going.

* * *

‘‘A. He just kept going.

* * *

‘‘Q. He just kept going?

‘‘A. Yeah.

‘‘Q. And he ignored you when you told him to stop?

‘‘A. Yes.’’

On the other hand, the defendant testified as follows:

‘‘She never said no. She said that all the kinky fooling

around stuff that we’d ever done, she said that she had

a lot of lost time to make up on. And, you know, she

wanted to experiment.’’

Furthermore, George Chapar, a psychologist who

treated Kendall for many years also testified at trial. In

particular, Chapar testified on direct examination by

the plaintiff’s counsel as follows:

‘‘Q. [Dr.] Chapar, let me ask a very different question.

Can you tell us what the psychological components are

of capacity to consent to a sexual relationship?

‘‘A. I think there are a host of elements that are

important. Obviously, one has to be of an appropriate

age based upon statutes that you know better than I.

One has to have the cognitive ability to weigh the risks

and benefits of a sexual relationship in order to make

a sound judgment. One has to be able to determine, in

essence, risk, whether situations are dangerous or safe

to take care of oneself in that way. To have the maturity

to enter into a relationship in such a way that the self

is protected both physically and emotionally, and, in

essence, to be mature enough to be able to take care

of oneself might be an essential way to put it.
‘‘Q. And using those standards, in your opinion, does

Kendall have the psychological and developmental

capacity to consent to a sexual relationship? . . .

‘‘A. Kendall, throughout her life, since her—at least

since her—since her mid-teens, has been unable to fend

for herself, to assess risk and benefit, to make sound

judgments, to, in essence, be able to even keep herself

alive without constant intensive, both parental and professional intervention constantly.

‘‘It’s not just one disorder that she has that creates

this situation, but the constellation or combination of

all of the illnesses and pyschopathologies that she has

now, also coupled with physical disabilities, and now

in essence brain damage from the stroke, that render

her unable to make independent decisions about virtually anything.

‘‘Sexual relationships are probably one of the more

complex relationships or decisions that we as people

make as adults. Kendall is incompetent to make such

a decision or to engage in such a relationship with any

degree of safety or forethought or judgment.’’

On the other hand, the defendant introduced evidence tending to show Kendall’s capacity to consent.

Specifically, the defendant produced Reena Kapoor, a

psychiatrist who evaluated Kendall at the request of

the defendant for the purposes of the litigation. Kapoor

testified that Kendall understood the physiological differences between males and females and what is

involved in sexual intercourse. Kapoor further

explained that Kendall understood that women can get

pregnant and that both men and women can get sexually

transmitted diseases from sexual intercourse. Kapoor

acknowledged that Kendall had deficits in many areas

of her general functional abilities. Nevertheless, Kapoor

testified on direct examination by defense counsel as

follows:

‘‘Q. . . . Can you say with a fair degree of medical

certainty, based on the evaluative criteria that you used,

whether Kendall Kortner was competent to consent to

sexual intercourse?

‘‘A. Yes.

‘‘Q. And what is your opinion?

‘‘A. That she did have the capacity to consent at the

time of this relationship.’’

The foregoing testimony demonstrates that the issue

of Kendall’s capacity to consent to a sexual relationship

was central to the present case and that the testimony

presented at trial did not clearly answer the question

one way or the other, but had to be closely evaluated

by the jury.

Moreover, an examination of the parties’ summations

also demonstrates that the issue of the plaintiff’s capac-
ity to consent to sexual conduct during the 2003 time

period was a central focus of the case. Indeed, both

the plaintiff’s counsel and the defendant’s counsel spent

a great amount of time in their summations focusing

on the issue of Kendall’s capacity to consent and, in

particular, attempting to establish what her capacity

was to consent at the time she was involved in a sexual

relationship with the defendant—namely, during 2003.

The plaintiff’s counsel emphasized the following evidence during his summation: ‘‘Now the issue of consent

in this case, as I said, is obviously one of the critical

issues. It is my position that by virtue of the fact alone,

that [the plaintiff] has been ‘‘Kendall’s’’ conservator

since 1994.

‘‘Kendall could not consent to enter into this relationship. That that is proof enough of her inability to consent to this relationship, so that’s proposition

number [one].

‘‘Proposition number [two] is that as . . . Chapar

told you in some detail, Kendall is incapable of consenting to a sexual relationship such as this and certainly incapable of consenting to the kind of abuse to

which the defendant subjected her and . . . Chapar

talked about that at some length in his testimony.

‘‘The third proposition is that even if you conclude

that Kendall has the capacity to consent . . . to such

a relationship and that she did consent to any of it, the

evidence is clear that in the latter part of the relationship, she stopped consenting.

‘‘The defendant escalated the abuse to which he subjected Kendall over the entire six month period of their

relationship; and you’ve heard evidence about that and

you heard Kendall talk about it.

‘‘It was almost like a drug addiction and he needed

more and more. It became more violent. It became

more aggressive. It was almost like he couldn’t get the

gratification he wanted without escalating the whole

pattern.

‘‘And clearly, there came a time when Kendall

stopped him or tried to stop him and he kept right on

going; tying her up, abusing her; hitting her with belts,

burning wax on her, all the other horrible things that

he did.

‘‘Now the court will instruct you on the law and I’m

not going to presume to interfere with that. The court

will explain what consent means and we’ll talk to you

about the legal standards for consent.

‘‘I simply suggest to you that if you look at . . . Chapar’s testimony, there is simply no way you can conclude that Kendall was capable of consenting to the

kind of abuse that [the defendant] subjected her to.

‘‘Let me go back to . . . Chapar for one minute
because I think that the summary that he gave at the end

of his testimony is very important for you to consider. I

took it down as much as I could write it, as fast as I

could write but again, it’s your recollection that counts

or as the Judge has already told you, you can ask to

have testimony reread if you want it or played back.

‘‘But recollection is that . . . Chapar said that for

her entire life, Kendall . . . has been unable to fend

for herself, to assess the risks and benefits; to make

sound judgments, even to keep herself alive without

constant parental and professional intervention and

supervision.

‘‘It is not just one condition but a combination of

them and the brain damage caused by the history of

malnutrition caused by the anorexia.

‘‘She is pretty much unable to make sound judgments

about anything. Sexualrelationships are one of the most

complex forms of human contact and she is unable to

decide about such a relationship, any degree of safety,

judgment or forethought.

‘‘Now the defense called . . . Kapoor and obviously,

she was here to refute that. She was here to say that

after six hours withKendall and afterthe review of some

incomplete medical records, records that were current.

‘‘Records that were missing after some standardized

testing which is not controversial, and we didn’t challenge it because it says what it says.

‘‘And it was done properly and it shows that Kendall

had a significant decline in her intelligence level and

mental functioning between the time, certainly, that she

was in college and now.

‘‘[Kapoor] tries to suggest to you that Kendall was

perfectly capable of consenting to everything that happened and that this is simply a situation where a young

woman got upset because her relationship with her

boyfriend broke up. [Kapoor] actually used the term

‘breakup.’

‘‘Now I will concede that . . . Kapoor’s a lovely

young woman. She’s smart. She’s successful. She’s done

very well in a short period of time, but I think it’s

important for you to remember that it is a short period

of time.

‘‘She graduated from college ten years ago. She graduated from medical school six years ago. She spent the

first four years of her training doing psychodynamic

therapy and treatment as a resident at the Harvard

Medical School and at the Deaconess Hospital in Boston, and only in the last two years has she gone into

forensic psychology at all.

‘‘On the basis of her six hours of interviews with

Kendall, the standardized testing and her review of the

records that we talked about; and I remind you, by the
way, she did not interview anyone else.

‘‘She didn’t talk to . . . Chapar. She relied on his

deposition transcript which was very one-sided taken

by the defense, not by me. She relied on . . . [the plaintiff’s] deposition transcript.

‘‘She didn’t talk to any of the medical doctors. She

didn’t talk to the nurses aid. She didn’t talk to anybody,

and yet she concluded that Kendall’s perfectly capable

of caring for herself and perfectly capable of consenting

to the kind of treatment to which the defendant had

subjected her.

‘‘[Kapoor] told us that there were six elements to

consider in determining capacity to consent to a sexual

relationship like this. The patient’s understanding of

the nature of sexual activity, but as she readily admitted,

any [twelve] year old can answer that.

‘‘The patient’s understanding of the consequences of

sexual activity such as pregnancy and sexually transmitted diseases. Again, any middle school has had that

taught to them in public health.

‘‘She didn’t want to talk so much about the emotional

consequences of sexual activity because she hadn’t

really evaluated Kendall’s ability to appreciate the emotional consequences.

‘‘Then she talked about the more important factors.

The patient’s general functional abilities and competence in other areas, to care for herself and to communicate.

‘‘Well the Probate Court had found [twelve] years

earlier that Kendall couldn’t care for herself. [Chapar]

told you that Kendall’s incapable of caring for herself.

‘‘[Kortner] told you that Kendall’s never been able to

care for herself, at least not since she was in college, and

even then she obviously had some serious problems.

‘‘And yet on the basis of six hours of interviews and

review of some of the medical records . . . Kapoor

reaches the opposite conclusion. She also concludes

that Kendall’s got the ability to make safe choices and

avoid exploitation, the ability to say no.

‘‘Well Kendall did say no in some cases, some

instances with the defendant but not very successfully.

‘‘And then finally, she suggested that one needs to

look at whether the behavior is consistent with the

person’s established beliefs and values; and you will

remember I cross-examined . . . Kapoor about that

and in point of fact, Kendall’s behavior with. . . [the

defendant] was the antithesis of her established beliefs

and values.

‘‘It was exactly the opposite of everything she ever

believed and every value she had ever held because of

the traumatic experiences she had suffered.
‘‘[Kapoor’s] analysis was based on an exam in 2009

and yet she suggests there were no differences between

2003 and 2009. That’s notwithstanding six years of therapy. That’s notwithstanding six years of introspection.

That’s notwithstanding all that’s involved in bringing

this lawsuit to the court.

‘‘[Kapoor] thinks that’s totally irrelevant. She did

agree with . . . Chapar about the concept of psychological age, although she tried to downplay its significance and ultimately admitted that it’s not something

that she used in her analysis of this case.

‘‘She did agree and I think this is really important.

She did agree that Kendall is mentally handicapped.

There’s simply no question about that.’’

In his summation, the defendant’s counsel emphasized the following: ‘‘So now we come to the issue

of is Kendall capable of consent. Is Kendall mentally

capable of consent?

‘‘And we find out some pretty startling things about

the standard orthe levelthat people in the psychological

and the psychiatric profession use to measure whether

people are capable of consent.

‘‘And notwithstanding what we learned . . . Chapar

gets up here with a straight face and says [Kendall’s]

incapable of consent. She has the developmental age

of a [twelve] year old.

‘‘Well now here comes . . . Kapoor, and it turns out

that if you have the developmental age of a [twelve]

year old, guess what? If you’re not [twelve] years old,

you’re capable of consenting to sex. Thanks, doc. For

once, you two agreed on something.

‘‘Do you know what a penis is? Do you know how it

fits into a vagina? Do you know that that’s where babies

come from? This is the kind of functioning that makes

a human being enjoy the civil privacy right that’s recognized in our law to have sex with someone else.

‘‘Are you a retarded citizen? That’s not a bar to having

sex. We don’t sterilize people or arrest them for having sex.

‘‘Are you mentally ill? Are you taking Zanax? Maybe

you can’t have sex if you’re taking Zanax. I don’t know

but I know this. The standard for consent is very,

very low.

‘‘And the doctor who said that Kendall . . . can’t

make it makes things up. Hey doc, by the way, just a

freebie on the way out. She reads love novels, doesn’t

she, romance novels? Remember them folks?

‘‘[Dr.] Chapar, oh, yes, she reads romance novels,

okay? Hey, Kendall . . . by the way, just not for nothing, do you read romance novels? No.

‘‘If they can’t get that right, how are they going to
prove life-altering damages. Now, I don’t mean to be

mean but we do have to be rudely realistic about this,

okay? Kendall . . . is going to die of her disease and

sadly, she’s not going to be here in [forty] years.

‘‘So now, the plaintiff comes in here with a table and

she says, oh, this is a table that shows that Kendall

. . . will live [forty] more years. No. Objection. It just

says a person may live [forty] more years, okay?

‘‘Again, stop trying to push that train through the

desert. Put it on the tracks. Stop telling us what almost

is. Just move it six inches, we’re back onto that railroad

track; and all of a sudden oh, okay, a healthy person

will live until [eighty-one].

‘‘Don’t get me wrong, okay. The plaintiff really wishes

that Martise brutally assaulted Kendall . . . . The

plaintiff, counsel, the doctor, they all really do believe

that this bad thing happened, but ladies and gentlemen,

you’re the jury.

‘‘You like the people in those records, you don’t have

a dog in this fight and you bring to us the ability to

referee this argument fairly.

‘‘And we’re not saying [the defendant is] a good guy

and we’re not saying you’re going to like [the defendant]. In fact, I think I promised some of you that you

wouldn’t like him at the end of the trial.

‘‘And I ask you if you didn’t like him and you didn’t

like what he did and you didn’t think he was a good

guy, could you still do what the law requires, which is

this, ladies and gentlemen.

‘‘If they haven’t convinced you that that train is six

inches away from a track and that Foxwoods happened

in the wintertime; and that the life expectancy table is

for Kendall . . . it’s not for every female in the United

States in 2005.

‘‘And if they haven’t convinced you that post-traumatic stress shouldn’t be in hundreds and thousands

of pages generated by days and days of encounters, it

can convince you that plaintiff’s [exhibit] 11 –- it’s called

plaintiff’s [exhibit] 11 but it’s my exhibit. [Nicholas]

Kopeloff [an internist] had all those tests done but

there’s no treating records. If they can convince that

all of that is real, if they can convince you that . . .

Dolan, [the] police investigator . . . got it wrong.

‘‘If they can convince you that she didn’t consent,

then yeah. I don’t know what you’d do with that. Then

I guess you’d have to go to damages but remember, if

you believe that she consented and if you believe that

. . . Dolan wrote it down because she did consent, [the

defendant] told me if he’s doing something I don’t like,

to say no, and I never said no.

‘‘All right. Now, I don’t know what you’re going to

do with that testimony. That’s like Mount Everest.
You’ve got to climb over that to get to where you can

talk about damages because the Judge will tell you that

if you find that she consented, game’s over. We go home.

‘‘If Kendall . . . consented, if Kendall . . . was

capable of consent, we’re out of here. We’re done. We

go home. We go back to our wife and our four children

and this case is over. That’s the first mountain.

‘‘Now I want to talk to you about the second mountain. The second mountain is that if you find that . . .

Dolan is not reliable, if you find that . . . Dolan got

it wrong.

‘‘If you want to find that Kendall . . . didn’t tell . . .

Dolan on October 14 that she consented to everything

that was done to her, if you want to find that, then you

may consider damages.’’

The foregoing testimony and summations by counsel

demonstrate that the issue of Kendall’s capacity to consent or object to sexual conduct during the 2003 time

period was the central issue in the case. Therefore, a

written document dated after Kendall’s stroke and from

2003 in which Kendall clearly expressed her lack of

consent to a romantic or physical relationship with a

man was very relevant to the key issue in the case. As

the foregoing evidence demonstrates, the parties spent

a great deal of time at trial presenting conflicting evidence about what Kendall’s abilities were. The physicians who testified had conflicting opinions about her

ability to consent, and one of the plaintiff’s main criticisms of the testimony of the defendant’s expert was

that Kapoor did not interview Kendall during 2003, but

her opinion was based on an interview conducted in

2009 and was not an accurate analysis of Kendall’s

abilities in 2003. On the basis of this debate between

the experts, plaintiff’s exhibit 7 served as an important

document demonstrating whatKendall was able to communicate regarding consent to sexual conduct at the

precise time in question. It served, essentially, as the

only documentary piece of evidence from 2003 that was

written by Kendall and related to her ability to consent.

Indeed, we need not speculate as to whether the jury

paid particular attention to plaintiff’s exhibit 7 because

the affidavits from the jurors and the questions to the

court clerk and judge demonstrate that the jurors were

taking note of the document and that it influenced

their decision.10

Moreover, we find that the failure of the clerk to alert

the judge as to the jurors’ questions regarding plaintiff’s

exhibit 7 is significant in the present case. Specifically,

the failure of the clerk to alert the judge caused the

trial court not to conduct any inquiry into the alleged

jury’s consideration of material not in evidence. Without

such a hearing, the plaintiff was unable to request any

remedy. Had the trial judge been properly made aware

of the jurors’ concerns, the plaintiff would have had
the opportunity to request that plaintiff’s exhibit 7 be

removed from the jurors’ consideration and that a curative instruction be given. Instead, by ignoring the jurors’

concerns, the clerk prohibited the plaintiff from timely

addressing the issue. Instead, the trial court required

the plaintiff to prove that plaintiff’s exhibit 7 probably

prejudiced the jury.

As we stated previously herein, in analyzing whether

a particular evidentiary impropriety is harmless, we

consider the following: ‘‘(1) the relationship of the

improper evidence to the central issues in the case,

particularly as highlighted by the parties’ summations;

(2) whether the trial court took any measures, such as

corrective instructions, that might mitigate the effect

of the evidentiary impropriety; and (3) whether the

improperly admitted evidence is merely cumulative of

other validly admitted testimony. . . .’’ (Internal quotation marks omitted.) Sullivan v. Metro-North Commuter Railroad Co., supra, 292 Conn. 162. In the present

case, all of these factors demonstrate that the evidentiary impropriety was not harmless. Plaintiff’s exhibit

7 was directly related to the central issue in the case

as demonstrated by the evidence and the parties’ summations. The trial court did not undertake any corrective measures to mitigate the effect of the evidentiary

impropriety because the clerk failed to properly relay

the jurors’ question to the trial court. Plaintiff’s exhibit 7

was not cumulative of other validly admitted testimony

because neither side was able to provide any demonstrative evidence of Kendall’s ability to consent to sexual conduct or to communicate that consent or lack

thereof during the 2003 time period. Accordingly, we

conclude that the consideration of plaintiff’s exhibit 7

by the jury in the present case was not harmless.

Although we recognize that the trial court was not

made aware of the allegation that the jury considered

material not in evidence until after judgment was rendered, the trial court abused its discretion in denying

the plaintiff’s motion to set aside the verdict and for a

new trial in light of the jury’s improper consideration

of a document not in evidence and the probability that

the jury was influenced by it. Accordingly, we reverse

the trial court’s judgment and remand the case to that

court with direction to grant the plaintiff’s motion to

set aside the verdict and for a new trial.

III

Although our conclusion in part II of this opinion

requires that the case be remanded to the trial court

for a new trial, we also address the plaintiff’s claim that

the trial court improperly denied the plaintiff’s motion

to strike and motion in limine seeking to preclude the

defendant from raising the issue of Kendall’s consent

as an affirmative defense because that issue is likely to

arise again on remand. Specifically, the plaintiff asserts

that the defendant should not have been allowed to
raise the issue of Kendall’s consent as an affirmative

defense because, as a conservatee, she did not have the

legal capacity to consent.11 In response, the defendant

asserts that the trial court properly denied the plaintiff’s

motion to strike and motion in limine related to consent.

Specifically, the defendant claims that the fact that a

person is a conserved person does not, as a matter of

law, deprive the person of the legal capacity to consent.

Instead, the defendant asserts that whether a person

consents is a factual question, even if that person is a

conservatee. We agree with the defendant, and, accordingly, conclude that the trial court properly denied the

plaintiff’s motion to strike and motion in limine related

to the issue of consent.

The following additional facts and procedural history

are necessary to our resolution of the second issue.

In response to the plaintiff’s complaint alleging sexual

battery, civil assault and intentional infliction of emotional distress, the defendant raised the special defense

that ‘‘[a]ny and all sexual contact between [the defendant] and [Kendall] was conduct between two capable,

willing and consenting adults.’’ Thereafter, the plaintiff

filed a motion in limine seeking to preclude the defendant from ‘‘raising, directly or indirectly, any claim,

assertion, argument, suggestion or inference that the

plaintiff’s ward, [Kendall], either explicitly or implicitly

consented to any of the sexual conduct of the defendant

as set forth in the complaint . . . .’’ The plaintiff also

filed a motion to strike, seeking to strike the defendant’s

special defense that Kendall consented to the sexual

conduct alleged. As grounds for her motions, the plaintiff claimed that Kendall was not capable of consenting

to sexual conduct because the plaintiff had been

appointed the conservator of her person.

The trial court denied both the plaintiff’s motion in

limine and her second motion to strike. In doing so,

the trial court determined that although a Probate Court

had found Kendall incompetent to handle certain of her

affairs, that did not necessarily mean that she was not

able to consent to a sexual relationship with the defendant. Indeed, the trial court pointed to the fact that

Kendall was allowed to spend time alone in her own

apartment, was able to use the computer, was able to

converse with certain people, and engage in basic

chores that required decision making, such as shopping

and cleaning. The trial court determined that the Probate Court’s decision appointing the plaintiff as Kendall’s conservator should not deprive the defendant

from ‘‘inquiring whether [Kendall] had the ability to

knowingly and voluntarily enterinto the sexualrelationship with the defendant and/or continue such conduct

and relationship.’’ Instead, the trial court determined

that ‘‘[t]he jury should, given the facts which will be

presented to them at this trial, determine if [Kendall]

had the ability to consent.’’ Accordingly, the trial court

denied the plaintiff’s motion to strike and motion in
limine.

We begin with the well established standard ofreview

regarding motions to strike. ‘‘A motion to strike attacks

the legal sufficiency of the allegations in a pleading.

. . . In reviewing the sufficiency of the allegations in

a complaint, courts are to assume the truth of the facts

pleaded therein and to determine whether those facts

establish a valid cause of action.’’ (Citation omitted.)

Keane v. Fischetti, 300 Conn. 395, 402, 13 A.3d 1089

(2011). ‘‘Because a motion to strike challenges the legal

sufficiency of a pleading, and, consequently, requires

no factual findings by the trial court, our review of

the court’s ruling on [a motion to strike] is plenary.’’

(Internal quotation marks omitted.) Connecticut Coalition for Justice in Education Funding, Inc. v. Rell,

295 Conn. 240, 252, 990 A.2d 206 (2010).

Furthermore, although the plaintiff’s claim does not

directly raise a claim of statutory construction, her

claim that a conserved person is not able to consent

to sexual conduct requires us to interpret the statutory

scheme creating conservatorships.12 ‘‘It is well settled

that in construing statutes, [o]ur fundamental objective

is to ascertain and give effect to the apparent intent of

the legislature. . . . [W]e seek to determine, in a reasoned manner, the meaning of the statutory language

as applied to the facts of [the] case, including the question of whether the language actually does apply. . . .

Finally, we review de novo the trial court’s construction

ofthe relevant statutory provisions.’’(Citations omitted;

footnote omitted; internal quotation marks omitted.)

Greco v. United Technologies Corp., 277 Conn. 337,

347–48, 890 A.2d 1269 (2006).

Under Connecticut’s current statutory scheme, two

types of conservatorships may be established. A conservator of the estate is appointed to ‘‘supervise the financial affairs of a person found to be incapable of

managing his or her own affairs’’ or of a person who

voluntarily requests the Probate Court to make such

an appointment. General Statutes § 45a-644 (a).13 A conservator of the person is appointed to ‘‘supervise the

personal affairs of a person found to be incapable of

caring for himself or herself’’ or of a person who voluntarily requests the Probate Court to make such an

appointment. General Statutes § 45a-644 (b).

Section 45a-650 (f)14 provides in relevant part as follows: ‘‘(2) If the court finds by clear and convincing

evidence that the respondent is incapable of caring for

himself or herself, that the respondent cannot be cared

for adequately without the appointment of a conservator and that the appointment of a conservatoris the least

restrictive means ofintervention available to assist the

respondent in caring for himself or herself, the court

may appoint a conservator of his or her person after

considering the factors set forth in subsection (g) of

this section . . . .’’ (Emphasis added.)
Section 45a-650 (l) provides as follows: ‘‘The court

shall assign to a conservator appointed under this section only the duties and authority that are the least

restrictive means of intervention necessary to meet

the needs of the conserved person. The court shall find

by clear and convincing evidence that such duties and

authority restrict the decision-making authority of the

conserved person only to the extent necessary to provide for the personal needs or property management

of the conserved person. Such personal needs and property management shall be provided in a manner appropriate to the conserved person. The court shall make

a finding of the clear and convincing evidence that

supports the need for each duty and authority assigned

to the conservator.’’ (Emphasis added.) The legislature’s repeated use of the term ‘‘the least restrictive

means possible’’ to define the duties assigned to the

conservator indicates that the legislature intended for

a conservatorship to be as limited in scope as possible.

Section 45a-656 (b)15 proscribes the manner in which

a conservator should carry out his or her role as conservator. Specifically, it provides as follows: ‘‘In carrying

out the duties and authority assigned by the court, the

conservator of the person shall exercise such duties

and authority in a manner that is the least restrictive

means of intervention and shall (1) assist the conserved

person in removing obstacles to independence, (2)

assist the conserved person in achieving self-reliance,

(3) ascertain the conserved person’s views, (4) make

decisions in conformance with the conserved person’s

reasonable and informed expressed preferences, (5)

make all reasonable efforts to ascertain the health care

instructions and other wishes of the conserved person,

and (6) make decisions in conformance with (A) the

conserved person’s expressed health care preferences,

including health care instructions and other wishes, if

any, described in section 19a-580e, or validly executed

health care instructions described in section 19a-580g,

or(B) a health care decision of a health care representative described in subsection (b) of section 19a-580e,

except under a circumstance set forth in subsection

(b) of section 19a-580e. The conservator shall afford

the conserved person the opportunity to participate

meaningfully in decision-making in accordance with the

conserved person’s abilities and shall delegate to the

conserved person reasonable responsibility for decisions affecting such conserved person’s well-being.’’

General Statutes § 45a-656 (b).

Furthermore, the legislature has defined ‘‘ ‘[l]east

restrictive means of intervention’ ’’ as ‘‘intervention for

a conserved person that is sufficient to provide, within

the resources available to the conserved person either

from the conserved person’s own estate or from private

or public assistance, for a conserved person’s personal

needs or property management while affording the con-
served person the greatest amount of independence

and self-determination.’’ General Statutes § 45a-644 (k).

Reading these statutes together demonstrates that the

legislature intended not only for a conservatorship to

be as limited in scope as possible, but also that the

conservatorship be carried out so as to maintain the

most independence and self-determination for the conserved person. Indeed, § 45a-650 (k) explicitly provides

that ‘‘[a] conserved person shall retain all rights and

authority not expressly assigned to the conservator.’’

On the basis of the foregoing statutory scheme, which

demonstrates that the legislature intended for conservatorships not only to be limited in scope but also not to

unnecessarily restrict the independence of the person

under the conservatorship, we conclude that the statutory scheme supports the conclusion that a conserved

person has the ability to consent to sexual conduct.

Indeed, it has previously been noted that, ‘‘[e]ven

more importantly, the overarching principle defining

the contours of the relationship between the court, the

conservator and the conserved person is the duty to

safeguard the best interests of the conserved person.’’

Gross v. Rell, 304 Conn. 234, 40 A.3d 240 (2012)

(McLachlan, J., concurring and dissenting). This court

has previously recognized that ‘‘there is no difference

in the court’s duty to safeguard the interests of a minor

and the interests of a conserved person . . . [and that]

[t]he purpose of statutes relating to guardianship is to

safeguard the rights and interests of minors and [adult

incapable] persons, and it is the responsibility of the

courts to be vigilant in seeing that the rights of such

persons are properly protected . . . . This is reflected

in the statutory scheme governing conservatorships,

which requires the Probate Court to be guided by the

conserved person’s best interests in establishing the

conservatorship and selecting the conservator . . . .’’

(Citations omitted; internal quotation marks omitted.)

Lesnewski v. Redvers, 276 Conn. 526, 540, 886 A.2d

1207 (2005).

In examining the current statutory scheme for conservatorships, it is important to understand the historical

context in which this scheme developed. ‘‘Prior to 1998,

in all cases in which a court found that a respondent

was incapable, it was obligatory to appoint a plenary

conservator. While amendments in Connecticut law

later permitted appointment of a conservator on a limited basis, and permitted courts to decline to intervene

in situations in which there was already a less restrictive

means in place to manage the respondent’s needs, plenary appointments continued to be the norm.’’16 K.

McEvoy, 20 Connecticut Practice Series: Connecticut

Elder Law (2012–2013 Ed.), §13:10, p. 775.

‘‘This has changed due to the comprehensive amendments that were made in the 2006 legislative session.

The amendments reflect years of debate on the national
scene concerning standards and procedure for appointment of a guardian. . . . These recommendations have

inspired reform in many states, and have had a significant influence on the drafting of model legislation.’’ Id.,

pp. 775–76.

In 1994, the Commission on National Probate Standards issued a revised set of standards that focused

on the following requirements, inter alia: ‘‘[1] greater

emphasis on the individual’s functional limitations; [2]

consideration of less restrictive alternatives; [3] use of

prehearing court visitors to discuss with respondents

the potential for deprivation of rights, and to investigate

assertions made petitions; [4] the role of counsel as

advocate for the respondent . . . [5] due process protections including personal notice, expedient hearings,

and strengthened evidentiary standards; and [6] a presumption of limited, evidence-based, individually-tailored appointments.’’ Id., p. 776.

This individual centered approach was also the focus

in 1997, when the National Conference of Commissioners on Uniform State Laws revised the Uniform Guardianship and Protective Proceedings Act to reflect that

guardians should be: appointed only when necessary;

only for so long as necessary; and only with such powers

as are necessary. Id.

In 2002 and 2004, the American Bar Association Commission on Law and Aging convened experts in the field

to discuss means including education, research and

funding, by which reforms on guardianship could be

achieved. Id. This group developed ‘‘a detailed ‘map’ of

action steps for areas including interstate jurisdiction,

training and standards of court practice, presumption

of limited guardianship and monitoring standards.’’ Id.,

p. 777.

In the 2006–2007 legislative session, the Connecticut

legislature made significant amendments to the statutory scheme governing conservatorships. Specifically,

pursuant to No. 07-116 of the 2007 Public Acts, the court

could limit the powers and duties given to a conservator

but needed to make specific findings to justify any limitation. See also General Statutes (Rev. to 2007) § 45a650 (h). The amendment required that the court limit

the duties of the conservator to only the duties and

authority that are the least restrictive intervention necessary to meet the person’s needs and that the management be provided in an appropriate manner. Public Act

07-116, § 16. The statutory amendments also required

the court to find by clear and convincing evidence that

the duties and authority restrict the person’s decision

making only to the extent necessary to provide for

personal needs or property management and make a

finding of the clear and convincing evidence that supports the need for each duty and authority. This act

also added the provision that specifies that the person

retains all rights and authority not expressly given to
the conservator. Public Act 07-116, § 16.

In describing Public Act 07-116, the Office of Legislative Research stated as follows: ‘‘Among the bill’s most

important changes, it: 1. requires the [P]robate [C]ourt

to record proceedings on appointing conservators, setting their powers and duties, and terminating conservatorships; 2. requires appeals of hearings appointing a

conservator to be on record and sets the standard for

court review; 3. changes the definitions of incapacity,

which is required for the court to find appointment of

a conservator necessary; 4. includes specific language

for a notice to the person who is the subject of a petition

for appointment of a conservator; 5. adds specific provisions about the right to an attorney and to choose an

attorney, for a person who has a conservator appointed

for him or her or is the subject of a petition for the

appointment of one; 6. requires the [P]robate [C]ourt

to consider certain factors and changes the standard

the court must apply before deciding to appoint a conservator, including requiring a finding that appointing

the conservator is the least restrictive intervention

available to assist the person; 7. requires the [P]robate

[C]ourt to give a conservator only the least restrictive

duties and authority necessary to meet the person’s

needs, and the court must make specific findings on

the need for each duty or authority; 8. requires a conservator to carry out the duties and authority assigned by

the court in a manner that is the ‘least restrictive means

of intervention’ . . . 9. makes a number of similar

changes to provisions on appointing a temporary conservator; 10. imposes specific requirements on the conservator of the person, including assisting in removing

obstacles to the conserved person’s independence,

ascertaining the person’s views, and making decisions

that conform with the person’s reasonable and informed

preferences; 11. creates a procedure for the [P]robate

[C]ourt to hold a hearing on changing a conserved person’s residence similar to the provisions in current law

for a conservator placing a person in a long-term care

institution; and 12. allows a conserved person to petition the [P]robate [C]ourt to terminate the conservatorship at any time.’’ Office of Legislative Research, Bill

Analysis Substitute Senate Bill 1439, ‘‘An Act Concerning Conservators and Appeals of Conservatorships and

Guardianships’’ (2007) available at http://www.cga.ct.-

gov/2007/BA/2007SB-01439-R01-BA.htm (last visited

May 23, 2014). ‘‘ ‘Although the comments of the [O]ffice

of [L]egislative [R]esearch are not, in and of themselves,

evidence of legislative intent, they properly may bear

on the legislature’s knowledge of interpretive problems

that could arise from a bill.’ Harpaz v. Laidlaw Transit,

Inc., 286 Conn. 102, 124 n.15, 942 A.2d 396 (2008); cf.

State v. Tabone, 279 Conn. 527, 542, 902 A.2d 1058 (2006)

(consulting analysis of bill by [O]ffice of [L]egislative

[R]esearch to ascertain legislative intent).’’ State v.

Courchesne, 296 Conn. 622, 700, 998 A.2d 1 (2010); Butts
v. Bysiewicz, 298 Conn. 665, 688 n.22, 5 A.3d 932

(2010) (same).

During debate in the House on the bill, Representative

Gerald Fox, a sponsor of the bill explained the following: ‘‘[It] essentially is a comprehensive [overhaul] of

our laws regarding conservatorships. It is the product

of a tremendous amount of work by a [c]ommittee

that was chaired by Hartford Judge [Robert] Killian,

including law professors, [health-care] professionals,

legal aid and legal rights groups. And they all came

together to form a compromise that is the product that

we have before us here this afternoon. The goals of

this [c]ommittee were twofold. They were to ensure

that the highest two due process safeguards are in place

before a [P]robate [C]ourtinterferes with an individual’s

civilrights by forming a conservatorship.’’ 50 H.R. Proc.,

Pt. 16, 2007 Sess., pp. 5150–51.

Representative Fox further explained that the new

requirements put in place ‘‘also clearly establish that

the conservatorship is a last resort, and that it is the

least intrusive means available by which the individual’s

affairs can be handled. . . . And only if the [c]ourt

finds by clear and convincing evidence that the respondent, the person being conserved cannot manage their

own affairs, and they find that the appointment is that

least restrictive means available, than only then will a

conservator be appointed.’’ Id., pp. 5151–52.

The current statutory scheme governing conservatorships and its historical development make it abundantly

clear that the legislature intends for conserved persons

to retain as much decision-making authority and independence as possible, and that a conservator’s role

should be limited so as to accomplish that objective.

Indeed, the fact that a conservator is appointed does

not mean that the conserved person loses all of his or

her civilrights. Rather, the conservator is to manage the

conserved person’s affairs through the least restrictive

means possible. With that in mind, we turn to the plaintiff’s claim in the present case. The crux of the plaintiff’s

claim is that it was improper for the trial court to allow

the defendant to present evidence that Kendall consented to the sexual conduct between her and the defendant on the ground that Kendall was legally unable to

consent because she was a conserved person. As we

have explained previously herein, a conservatorship is

to be narrowly tailored to meet its objectives, a conservator only has the authority specifically assigned to him

or her and any other decision-making authority remains

in the conserved person. On the basis of the statutory

scheme for conservatorships, we cannot conclude that

any conserved person is legally unable to consent to

sexual conduct. Instead, we conclude that the issue of

whether a conserved person is able to consent to sexual

conduct is a factual question for the jury to decide

based on the nature of the particular conservatorship
and the abilities of the conserved person.

In the present case, the plaintiff did not establish, or

even allege, that her appointment as conservator of

Kendall’s person specifically included the duty to manage Kendall’s interpersonal and/or romantic relationships. Indeed, as the trial courtrecognized, the evidence

demonstrated that Kendall lived in her own apartment,

spent unsupervised time there, and was able to make

decisions about her household chores and carry on

interpersonalrelationships, including those on the computer. Instead, the plaintiff maintains that the fact that

Kendall was a conserved person was sufficient by itself

to demonstrate that she was unable to consent to sexual

conduct. We disagree. A bright line rule on this issue,

as suggested by the plaintiff, would be contrary to the

clear legislative intent as exemplified by the statutory

scheme. It would further affect the civil liberties of all

conserved persons. Therefore, we conclude that the

final determination of whether Kendall had the ability

to consent to sexual conduct is a factual question that

the jury must decide.

Accordingly, we cannot conclude that the trial court

improperly denied the plaintiff’s motion to strike and

motion in limine regarding consent. To the contrary,

we agree with the trial court that the defendant was

entitled to inquire into Kendall’s ability to consent to

sexual conduct and to raise her consent as a defense

to the claims made by the plaintiff.

IV

Although our conclusion in part II of this opinion

requires that the case be remanded to the trial court

for a new trial, we also address the defendant’s claim17

that the trial court improperly instructed the jury to

consider Kendall’s conservatorship in determining her

capacity to consent to sexual conduct because it is

likely to arise again on remand. The defendant asserts

that the trial court should not have instructed the jury

to considerthe factthatKendall was a conserved person

because being a conserved person does not constitute

a bar from consent.

We first set forth the standard of review applicable

to a challenge to a jury instruction. ‘‘When reviewing

[a] challenged jury instruction . . . we must adhere to

the well settled rule that a charge to the jury is to be

considered in its entirety,read as a whole, and judged by

its total effect rather than by its individual component

parts. . . . [T]he test of a court’s charge is not whether

it is as accurate upon legal principles as the opinions

of a court of last resort but whether it fairly presents

the case to the jury in such a way that injustice is not

done to either party under the established rules of law.

. . . As long as [the instructions] are correct in law,

adapted to the issues and sufficient for the guidance

of the jury . . . we will not view the instructions as
improper.’’ (Internal quotation marks omitted.) Archambault v. Soneco/Northeastern, Inc., 287 Conn. 20, 42,

946 A.2d 839 (2008).

In the present case, the trial court instructed the jury

as follows on the issue of consent: ‘‘As to the issue

of whether [Kendall] consented, you must determine,

based upon the testimony and the evidence, whether

the plaintiff has proved that [Kendall] did not consent.

‘‘As to the special defense of consent alleged by the

defendant, he has the burden of proof on this special

defense by a fair preponderance of the evidence to

prove that he is not liable for the damages alleged

because [Kendall] had the capacity and did consent.

‘‘Based upon the claims by each party, you then must

determine if consent was or was not given. Consent is

an expression or a willingness for something to occur. It

implies voluntariness, free will; reasoned or intelligent

choice; physical or moral power of acting in an act of

concurrence unclouded by fraud, distress or mistake.

It may be manifested by words, by actions or by inaction, and to avoid liability, it must be legally valid.

‘‘For your purposes, any person is presumed by law

to be capable of consenting to sexual conduct unless

such person is barred by law. For instance, such as the

age of the person or the degree of kinship between the

parties or . . . unless the other person knows or has

reason to know of some mental or psychological abnormality, whether temporary or permanent, which would

impair the ability to consent and render that consent

invalid.

‘‘In this regard, the [plaintiff] contends that [Kendall]

was not capable of giving consent as I have defined it

because of the appointment of a conservator. She further contends that even without considering the

appointment, the testimony and evidence demonstrate

at the time in question between February, 2003, and

August, 2003, [Kendall] was not capable of consent

because she did not understand and appreciate the

nature of the sexual act, its character or the probable

consequences which are part of the act.

‘‘Further, you must determine that she did not voluntarily, freely and knowingly enter into the relationship.

The ability to give knowing consent involves more than

a person’s I.Q. or cognitive ability.

‘‘It is a question of fact for you to determine based

upon the totality of the testimony and evidence whether

the plaintiff and the defendant has sustained their burden as to this element of consent. In making a finding,

you may consider the following: Number 1, was [Kendall] legally capable of consenting to the relationship

because she has a conservator appointed by the Probate

Court. Number 2, was [Kendall] mentally capable, that

is voluntarily, knowingly and freely consenting to the

relationship which includes the scope of the sexual
relationship between her and the defendant. And [number] 3, did [Kendall] demonstrate by her words, by her

conduct or by her inaction that she either consented

or did not consent to each of the sexual acts.

‘‘As to the capability to consent, you have heard testimony and received evidence that in 1994, the Probate

Court in Stamford appointed [the plaintiff] as a conservator for [Kendall]. This appointment was made pursuant to our law to give authority to the [plaintiff] to

consent to [Kendall’s] medical or other professional

care, counsel, treatment or service. This appointment

is a factorthat you may considerin determining whether

[Kendall] consented to the sexual relationship.

‘‘This appointment of conservator without more is

not necessarily conclusive proof of the capability of

[Kendall] to consent to the sexual relationship.’’

As we explained in part III of this opinion, the fact

that Kendall was a conserved person at the time of her

relationship with the defendant is not determinative of

whether she had the capacity to consent. Instead, the

final determination of whether Kendall had the ability

to consent to sexual conduct is a factual question that

the jury must decide based on all ofthe evidence, including the fact that she was a conserved person. Reviewing

the challenged jury instruction in the present case, in

its entirety and read as a whole, we cannot conclude

that it was improper. The challenged instruction

explained the factual considerations that are relevant

to a determination of whether Kendall consented,

including the fact that she was a conserved person at

the time of her relationship with the defendant. On the

basis of our conclusion in part III of this opinion, we

conclude that the instruction was proper.

V

We also address the defendant’s claim that the trial

court improperly submitted interrogatories asking the

jury to determine whether the defendant showed Kendall pornographic photographs and videos because it

is likely to arise again on remand.

‘‘In Freedman v. New York, N.H. & H. R. Co., 81

Conn. 601, [612] 71 A. 901 (1909), this court observed

. . . that the purpose of interrogatories was to elicit a

determination of material facts, [and] to furnish the

means of testing the correctness of the verdict rendered, and of ascertaining its extent. Gaulton v. Reno

Paint & Wallpaper Co., 177 Conn. 121, 125, 412 A.2d

311 (1979); see also Blanchette v. Barrett, 229 Conn.

256, 262–63 n.6, 640 A.2d 74 (1994)(interrogatories [provide] a means by which the jury [could] record the

findings of fact [that] form[ed] the basis fortheir verdict

. . . . The power of the trial court to submit proper

interrogatories to the jury, to be answered when

returning their verdict, does not depend upon the consent of the parties or the authority of statute law. In
the absence of any mandatory enactment, it is within

the reasonable discretion of the presiding judge to

require or to refuse to require the jury to answer pertinent interrogatories, as the proper administration of

justice may require. Freedman v. New York, N.H. & H.

R. Co., [supra, 612]. . . . The trial court has broad discretion to regulate the manner in which interrogatories

are presented to the jury, as well as their form and

content.’’ (Citation omitted; internal quotation marks

omitted.) Viera v. Cohen, 283 Conn. 412, 449–50, 927

A.2d 843 (2007).

In the present case, the trial court’s interrogatories

included three questions asking the jury to determine

whether the plaintiff had proved by a preponderance

of the evidence that the defendant ‘‘repeatedly showed

Kendall pornographic [photographs] and videos.’’ These

interrogatories were part of the interrogatories related

to claims of sexual battery, civil assault and intentional

infliction of emotional distress. There was evidence

presented at trial to form a basis for these interrogatories. Indeed, the plaintiff claimed that the defendant

showed Kendall pornographic photographs and videos

as part of his scheme to overpower and take advantage

of her. Accordingly, we conclude that it was within the

trial court’s discretion to submit interrogatories to the

jury on this issue.

VI

The defendant also raised other claims in his brief

that we decline to review because they were inadequately briefed. ‘‘We are not obligated to considerissues

that are not adequately briefed.’’ West Haven v. Norback,

263 Conn. 155, 177, 819 A.2d 235 (2003). ‘‘Whe[n] an

issue is merely mentioned, but not briefed beyond a

bare assertion of the claim, it is deemed to have been

waived.’’ Bridgeport Hospital v. Commission on

Human Rights & Opportunities, 232 Conn. 91, 115, 653

A.2d 782 (1995). In addition, mere conclusory assertions

regarding a claim, with no mention ofrelevant authority

and minimal or no citations from the record, will not

suffice. See Celentano v. Rocque, 282 Conn. 645, 659,

923 A.2d 709 (2007); Northeast Ct. Economic Alliance,

Inc. v. ATC Partnership, 272 Conn. 14, 44 n.20, 861

A.2d 473 (2004); West Haven v. Norback, supra, 177;

see also Practice Book § 67-4.

First, the defendant claims that the trial court improperly denied the defendant’s motion to dismiss various

counts of the plaintiff’s complaint at the close of the

plaintiff’s evidence because the plaintiff’s expert witness was conclusory and misstated the requisite level

of competence. The defendant only offers two short

paragraphs with no analysis, no citations to the record

or transcripts to direct this court to the trial court’s

discussion of the defendant’s motion to dismiss18 at the

close of the plaintiff’s evidence. The only legal citations

provided relate to the standard of review for directed
verdicts. Accordingly, we consider this claim inadequately briefed and do not review it.

The defendant also claims that the trial court improperly instructed the jury to consider certain statutory

exceptions to the defense of consent for persons in

positions of authority. The defendant addresses this

claim in less than one page of his brief, provides no

citations to the record, only a citation to General Statutes § 53a-73a,19 and provides no analysis of the claim.

Therefore, we consider this claim inadequately briefed

and do not review it.

The judgment is reversed and the case is remanded

for a new trial.

In this opinion ROGERS, C. J., and NORCOTT and

ZARELLA, Js., concurred.

* The listing of justices reflects their seniority status on this court as of

the date of oral argument.

1 Kortner instituted the present civil action against the defendant in her

capacity as the conservator of Kendall’s person. After trial, Kendall died

and Kortner was appointed as administratrix of Kendall’s estate. Thereafter,

the trial court granted a motion substituting Kortner, in her capacity as

administratrix, as the plaintiff in the present case. For the sake of simplicity,

we refer to Kortner, in her capacity as both conservator and administratrix,

as the plaintiff throughout this opinion.

2 The plaintiff appealed from the judgment of the trial courtto theAppellate

Court, and we transferred the appeal to this court pursuant to General

Statutes § 51-199 (c) and Practice Book § 65-2.

3 The defendant filed a cross appeal from the judgment of the trial court

to the Appellate Court; see footnote 4 of this opinion; and we transferred

the appeal to this court pursuant to General Statutes § 51-199 (c) and Practice

Book § 65-2.

4 The defendant cross appealed from the judgment of the trial court claiming that the trial court improperly: (1) denied his motion to dismiss various

counts of the plaintiff’s complaint at the close of the plaintiff’s evidence

because the plaintiff’s expert witness was conclusory and misstated the

requisite level of competence;(2)instructed the jury to consider(a) Kendall’s

conservatorship in determining her capacity to consent to sexual conduct

and (b) certain statutory exceptions to the defense of consent for persons

in positions of authority; and (3) submitted interrogatories to the jury to

determine whether the defendant showed Kendall pornographic photographs and videos where it was asserted that the viewing of such materials

by adults is neither illegal nor tortious. We note, however, that the defendant

was not aggrieved by the judgment of the trial court and, therefore, lacked

standing to file an appeal. See State v. T.D., 286 Conn. 353, 358–59, 944 A.2d

288 (2008). Accordingly, as stated previously in this opinion, we consider

these issues only to the extent that they are likely to arise again on retrial

and are adequately briefed.

5 The plaintiff was last reappointed as conservator of Kendall’s person in

October, 2009.

6 See footnotes 2 and 3 of this opinion.

7 Following oral argument, we ordered the parties, sua sponte, to submit

simultaneous briefs on the following issues: ‘‘1. When the Probate Court

has ordered a conservatorship of the person only and has not expressly

granted authority to the conservator to sue on behalf of the conserved

person, does the conservator have standing to commence an action in the

conservator’s own name in her capacity as conservator for intentional torts

against the conserved person by a third party? 2. If not, can such a subject

matter jurisdictional defect be cured by the trial court’s decision granting the

conservator’s motion to substitute herself in her capacity as administratrix of

the conserved person’s estate following the death of the conserved person

[postjudgment]?’’ Because we conclude that, even if the plaintiff lacked

standing to bring this action in 2006, any defect was cured by her substitution

as administratrix of Kendall’s estate, we do not reach the first question.

8 After hearing argument on the motion to set aside the verdict and for

a new trial, the trial court requested that both counsel submit memoranda
as to whether a further evidentiary hearing was necessary to determine

what effect, if any, the inclusion of plaintiff’s exhibit 7 had on the jury. Both

parties submitted memoranda to the court in which they argued that the

court should not conduct an evidentiary hearing into the allegations regarding the jury considering material not in evidence.

9 Assuming, arguendo, that the actions of the plaintiff’s counsel constituted

a waiver regarding plaintiff’s exhibit 7, the clerk’s failure to inform the trial

court of the jurors’ concerns about the exhibit trumps the waiver by the

plaintiff’s counsel. If the court had been made aware of the problem and

properly informed the parties about it, the court would have abused its

discretion if it failed to remove the exhibit from the jury’s consideration

and instructed them accordingly. This is particularly true in light of the fact

that, during oral argument, counsel for the defendant conceded that he

would not have objected to that course of action.

10 Justice McDonald asserts in part II B of his concurring and dissenting

opinion that ‘‘there is no evidence that remotely would suggest that the

jury did consider, or would have considered, [plaintiff’s] exhibit 7 in its

deliberations.’’ We disagree. The record demonstrates that plaintiff’s exhibit

7 was considered by the jury. The jury reviewed the exhibit, drafted a

question for the judge about the exhibit, spoke with the trial court clerk

about it, and even showed it to the trial court when she spoke to the jurors

after the verdict. The mere number of times that the jury attempted to

inquire about the exhibit is evidence of the impact the exhibit had on the jury.

Justice McDonald further asserts that plaintiff’s exhibit 7 ‘‘lends some

support to the plaintiff’s case and is consistent with Kendall’s own testimony.’’ We disagree. In the affidavits, the jury foreperson explained as

follows: ‘‘The jury was confused, and some members were troubled, about

why this letter was a plaintiff’s exhibit and why it was in the box of exhibits

sent in to us, but based on the clerk’s comments, we assumed that the

exhibit was properly before us and that we were supposed to see it even

without any previous explanation.’’ Another juror explained in his affidavit

as follows: ‘‘In spite of all this, I was never able to understand why [exhibit

7] was a plaintiff’s exhibit and why it had been given to us but never

discussed or explained by anyone during the trial.’’ (Emphasis in original.)

The jury’s own confusion over why the exhibit was offered by the plaintiff

belies Justice McDonald’s assertion that the letter was actually consistent

with the plaintiff’s case.

Furthermore, a careful review of the letter demonstrates that it was not

consistent with the plaintiff’s case. First, as we have explained previously

in this opinion, the plaintiff’s case was premised on the fact that Kendall

lacked the capacity to consent to sexual conduct. As Justice McDonald

acknowledges, ‘‘evidence that a person has expressed that he or she does

not consent to engage in certain conduct would be relevant evidence of

that person’s capacity to consent.’’ Therefore, a letter in which Kendall

expressed her lack of consent to engage in sexual conduct with one individual was not consistent with the plaintiff’s case, but directly in opposition

to it.

Second, plaintiff’s exhibit 7 actually bolstered the credibility of the defendant. The defendant’s entire defense was premised on the fact that Kendall

was able to consent to sexual conduct and had, in fact, consented to all

sexual conduct between them. Therefore, a letter, which appeared to have

been written by Kendall expressing her lack of consent to engage in sexual

conduct with another individual at the same time she was beginning a sexual

relationship with the defendant supported his claim that Kendall had the

capacity to consent to sexual conduct and that, if Kendall did not consent

to the sexual conduct with the defendant, she would have expressed her

lack of consent in the same way she expressed her lack of consent to sexual

conduct by Jones.

Third, plaintiff’s exhibit 7 damages the credibility of Kendall. Plaintiff’s

exhibit 7 is dated February, 2003, and states that ‘‘one of your employees

. . . for the past two years has consistently made unwanted, inappropriate

and threatening sexual advances to me.’’ In February, 2003, Kendall had

just recently moved back into her apartment after the stroke that occurred

in 2001. The testimony at trial, including the plaintiff and Kendall’s own

testimony established that Kendall was not living in her apartment between

May, 2001 and late November, 2002. Instead, she had been staying in a

hospital, a rehabilitation facility, and at the plaintiff’s house during that

period. Accordingly, a letter in which she accused an employee of her

apartment complex of consistently engaging in unwanted, inappropriate and

threatening sexual advances during a time period when he would have been

unable to engage in such conduct, because she was under supervised care,

would damage her credibility with the jurors because the jurors would see

the inconsistency between that accusation and the other testimony presented.
Moreover, priorto trial,the plaintiff had filed a motion in limine seeking the

court to prohibit ‘‘the defendant from inquiring into, making any reference to,

or offering any exhibits relating to’’ Jones and two other individuals whom

she had alleged engaged in inappropriate sexual advances. The basis of the

plaintiff’s motion was that references to these prior accusations of sexual

advances were more prejudicial than probative and would be used by the

defendant in an attempt to show that Kendall accused every man she met

of engaging in sexual misconduct. After hearing argument on the motion in

limine, the trial court ruled that the defendant was not to inquire into the

prior complaints without first alerting the court of his intention to do so,

but reserved its decision on the admissibility of such evidence to be made

based upon the testimony at the time of trial. During trial, the trial court

ultimately ruled on the motion and determined that ‘‘[t]here will be no

questions regarding this individual named [Jones].’’ The trial court’s ruling

on the plaintiff’s motion in limine demonstrates that it had determined that

references or exhibits related to the plaintiff’s allegations regarding Jones

would be prejudicial to the plaintiff. Accordingly, we conclude that the

improper consideration of plaintiff’s exhibit 7 likely ‘‘affected the jury’s

perception of the remaining evidence.’’ Sullivan v. Metro-North Commuter

Railroad Co., supra, 292 Conn. 163.

Justice McDonald seems to suggest that the testimony of the experts, and

not Kendall’s credibility, was a paramount factor in the jury’s determination

as to whether Kendall had the capacity to consent. We disagree. Justice

McDonald’s concurring and dissenting opinion is substituting a particular

view of how a jury should have considered the evidence in the present case

rather than acknowledging the fact that, in a case of this nature, Kendall’s

testimony and credibility was the key element of the case and an exhibit

that called any of her testimony into question would have swayed the jury.

11 The plaintiff also asserts that the defendant’s defense of consent should

have been barred because, as a matter of public policy, an individual should

not be allowed to consent to the nature of the sexual conduct alleged in

the present case. The plaintiff did not provide and we cannot find any

support for the proposition that, as a matter of law, consent is not a defense

to a civil action because of the types of sexual acts alleged. As we explain

more fully herein, whether the defendant and Kendall engaged in the sexual

conduct alleged by the plaintiff and whether Kendall consented to that

sexual conduct was properly a question of fact for the jury to determine.

12 As we explain subsequently in this opinion, the legislature has made

significant changes to the statutes governing conservatorships since the

events underlying the present appeal. See, e.g., Public Acts 2007, No. 07-

116, § 16. We note that, to the extent that we examine the question of

legislative intent in this opinion, we refer to the current revision of General

Statutes §§ 45a-644, 45a-650 and 45a-656.

13 See footnote 12 of this opinion.

14 See footnote 12 of this opinion.

15 See footnote 12 of this opinion.

16 In 1998, the legislature enacted No. 98-219, § 17, of the 1998 Public Acts,

which allowed the court to limit the powers of a conservator upon a specific

finding that such limitation was in the best interests of the conserved person.

17 The defendant referred to this claim as an issue on cross appeal. The

defendant was not aggrieved by the judgment of the trial court and, therefore,

cannot appeal. See footnote 4 of this opinion. Nevertheless, we address

those claims that ‘‘should be considered on appeal in the event the appellant

is awarded a new trial . . . .’’ Practice Book § 63-4 (a) (1) (B).

18 Indeed, the plaintiff asserts that the defendant never moved for dismissal

at the close of the plaintiff’s evidence.

19 This court notes that there is no mention of § 53a-73a in the court’s

charge in the present case.